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Flag Burning and Free Speech

The Founding Fathers agreed that the First Amendment protected 'symbolic expression.'

By

Eugene Volokh

Updated July 3, 2009 12:01 a.m. ET

Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.

Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment...